Decision Date: October 24, 2013

Panel: Alan Andison

Keywords: Environmental Management Act – s. 94(1)(a); preliminary decision; order; application; participant

Cowichan Lake is a large freshwater lake on southern Vancouver Island, BC. It is located along the Cowichan Valley in the Cowichan Valley Regional District, and is the source of the Cowichan River. Catalyst Paper Corporation (“Catalyst”) operates a weir which regulates water flow from Cowichan Lake into the Cowichan River for much of the year pursuant to certain conditional water licences.

Since about 1990, the operational regime for water storage in Cowichan Lake was governed by a “rule curve.” In or about 2007, the Cowichan Valley Regional District proposed changes to the rule curve.

On November 30, 2012, the Cowichan Valley Regional District’s board of directors passed a resolution requesting that the Province implement a “rule band” protocol for managing Cowichan Lake, in place of the rule curve. The Cowichan Watershed Board (“CWB”) worked with the Cowichan Valley Regional District to develop the proposal to implement a rule band protocol for managing Cowichan Lake.

In May 2013, the Deputy Comptroller of Water Rights (the “Comptroller”), Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”) issued the order to Catalyst. The order revised the requirements governing the operation of weir on Cowichan Lake, and implemented a rule band protocol.

Six appeals were filed against an order. After the appeals were filed, the Comptroller provided the Board with a list of persons or agencies that may be affected by the Board’s decision on the appeals. The Board sent a “Notice to Persons Potentially Affected by Appeals” to the persons and agencies that the Comptroller had identified. The Board’s notice provided information about the appeals against the order, and requested that the recipients advise whether they wished to participate in the appeals.

Subsequently, the CWB applied to the Board for participant status in the appeals. Specifically, the CWB requested: the right to be served with all documents related to the appeals; the right to present evidence and cross-examine witnesses; and the right to make submissions as to facts and law, both orally and in writing.

The Board invited all parties to provide written submissions on the CWB’s application for participant status.

Both the Comptroller and Catalyst had no objection to the CWB’s application.

The Appellants D’Arcy Lubin, Catherine Willows Woodrow, and Michael Dix opposed the application.

The Board applied a two-part test in deciding the application for participant status.

First, the Board considered whether the CWB had a valid interest in the appeals. The Board noted that one of the primary purposes of the order is to implement the rule band protocol for managing Cowichan Lake. After considering the CWB’s mandate, which is related to management of the Cowichan watershed, and that the CWB had worked with the Cowichan Valley Regional District to develop the proposal to implement a rule band protocol, the Board concluded that the CWB had a valid interest in the appeals. Specifically, the Board held that the CWB has a valid interest in the management of water resources within the Cowichan watershed, and the implementation of the rule band protocol for managing Cowichan Lake, both of which relate to the order. The Board also found that, although the CWB’s interests may be partially aligned with those of the Comptroller, and the Cowichan Valley Regional District which also sought participant status, the CWB’s board of directors represent a variety of stakeholders, some of whom may have unique perspectives and interests in relation to the appeals, that would not be represented by any other participant or party.

Second, the Board considered whether the CWB could be of assistance in the proceedings. The Board finds that the CWB may have unique perspectives and expertise, and relevant technical information, that could assist the Board in understanding the application and impact of the order. In addition, the Board found that, although adding the CWB as a participant may add complexity to the proceedings, and add to the length of the hearing, the CWB was prepared to coordinate its evidence and submissions with those of the Comptroller and other potential participants, to avoid duplication or unduly lengthening the proceedings.

In these circumstances, the Board concluded that the CWB would be of assistance in the appeal proceedings, and should be granted full participant status as requested.

Accordingly, the CWB’s application for participant status was granted.